BA Nos.6560&7011 of 2020

BA Nos.6560&7011 of 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **Bail Appl..No.6560 OF 2020** **CRIME NO.1970/2020 OF Kottiyam Police Station , Kollam** ## **PETITIONER/ACCUSED:** **BAIJU S AGED 47 YEARS, S/O. VISWANATHAN, RESIDING AT SIVANADA PADINJATTATHIL, NORTH MYLAKKADU.P.O., THAZHUTHALA VILLAGE, KOLLAM- 691571** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031 2 THE STATION HOUSE OFFICER, KOTTIYAM POLICE STATION, KOLLAM** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.11.2020, ALONG WITH Bail Appl..7011/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA Nos.6560&7011 of 2020 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** **Bail Appl..No.7011 OF 2020** **CRIME NO.1970/2020 OF Kottiyam Police Station , Kollam** ## **PETITIONER/S:** **KRISHNAKUMAR AGED 46 YEARS S/O. SREEDHARAN PILLAI, RESIDING AT SYMALA MANDIRAM, MYLAKKADU.P.O., ADHICHANELLOR, KOTTIYAM, KOLLAM- 691571** **BY ADV. SRI.C.R.JAYAKUMAR RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031 2 THE STATION HOUSE OFFICER, KOTTIYAM POLICE STATION, KOLLAM PIN-691571** **BY PUBLIC PROSECUTOR SRI.RENJITH T.R** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.11.2020, ALONG WITH Bail Appl..6560/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA Nos.6560&7011 of 2020 3 ## **O R D E R** ## **[ Bail Appl..6560/2020, Bail Appl..7011/2020 ] Dated this the 11th day of November 2020** These Bail Applications filed under Section 438 of Criminal Procedure Code were heard through Video Conference. 2. Petitioners are the accused in Crime No.1970/2020 of Kottiyam Police Station, Kollam. Since these petitions are filed by the accused in the same crime, I am disposing these bail applications by a common order. 3. The above case is registered against the petitioners alleging offences punishable under Sections 354 IPC and Sections 7, 8, 12, 11(1) and 21 of the POCSO Act. 4. The prosecution case in nutshell is like this: The petitioner in B.A.No.7011/2020 is the husband of the defacto complainant. The marriage between the petitioner in that bail application and the defacto complainant was on 28.12.2007. In this wedlock there was a daughter and now the daughter is aged 12 years. The defacto complainant is also having another child born in the wedlock with her first husband. There was some dispute between the petitioner and the defacto complainant which resulted BA Nos.6560&7011 of 2020 4 in filing O.P(MHA) No.1204/2018 before the Family Court, Kollam. The above case was filed on 27.10.2018. In that case, the petitioner in B.A.No.6560/2020 is arrayed as the adultrator of the defacto complainant. That divorce petition is even now pending. 5. The present FIR is registered on 26.9.2020, alleging that the petitioner in B.A.No.6560/2020, who is alleged as adultrator of the defacto complainant committed sexual assault on the child. The alleged incident, according to the FIR, happened on 16.3.2019. The FIR was registered on 26.9.2020. According to the prosecution, the child was given custody to the father on that day morning and when the child was in the house of the father, the petitioner in B.A No.6560/2020 sexually abused the child. This is the sum and substance of the allegation. 6. Heard the learned counsel for the petitioners and the defacto complainant. I heard the learned Public Prosecutor also. 7. The counsel for the petitioners submitted that admittedly there are matrimonial dispute between the petitioner in B.A.No.7011/2020 and the defacto complainant. There are dispute about the custody of the child also pending before the Family Court. The counsel for the father of the victim submitted that Annexure 3 in B.A No.7011/2020 is the B diary in O.P(GW) No.241/2018. In that B diary, the order of the learned Family BA Nos.6560&7011 of 2020 5 Court Judge on 16.3.2019 will show that the entire allegation against the petitioners are false. The counsel submitted that there is a long delay of about 1½ years in lodging the FIR. That itself shows that the allegations against the petitioners are false. The counsel for the father of the child also submitted that he arrayed the petitioner in B.A No.6560/2020 in the divorce proceedings as an adulterer of the defacto complainant. Now the defacto complainant says that the adultrator came to the house of the father of the victim and sexually abused the child. The counsel submitted that this is improbable. 8. The learned counsel for the defacto complainant submitted that what is stated by the petitioners are absolutely false. This is a serious case in which a child is sexually abused by the accused in this case. The counsel submitted that in such situation, the delay in filing the complaint is of no consequence. The child was waiting for the settlement of the case. The child thought that if the matter is amicably settled and if the father and the mother is united, no complaint need to be made. That is why the delay is happened. The counsel submitted that the entry in the B diary is not correct. The counsel submitted that she will produce a corrected order from the lower court. The counsel also submitted that this is a case in which the petitioners committed BA Nos.6560&7011 of 2020 6 child abuse and therefore, this Court may not pass orders under Section 438 Cr.P.C. 9. The learned Public Prosecutor also opposed the bail application. The Public Prosecutor made available the first information statement given by the victim. It is in a question and answer mode. The Public Prosecutor submitted that in the statement it is stated that the child was given custody to the father on 16.3.2019 morning and the child was returned on the same day evening. Therefore, the case of the prosecution is correct. This is the submission of the Public Prosecutor. 10. After hearing both sides, I think, these bail applications are to be allowed. Admittedly, there are matrimonial disputes between the petitioner in B.A.No.7011/2020 and the defacto complainant. The alleged incident happened on 16.3.2019. The first information statement is given only on 26.9.2020. It is true that this is a matter to be investigated whether there is any justification for the delay. I don't want to make any observation about that. But it is also to be noted that in Anneuxre A3 B diary in O.P(GW) No.241/2018 what was stated is important. The same is extracted hereunder: > “Petitioner present. Respondent present with ward. Petitioner 1 and 2 allowed to interact with child as he does not requires to interact with child. Parties shall be present06-04-2019” BA Nos.6560&7011 of 2020 7 11. The counsel for the defacto complainant submitted that this is a wrong entry. I cannot decide the same. As on today, it is clear that the custody is not given to the father on that day. I make it clear that, I don't want to make any observation about the merit of the case. The investigating officer is free to investigate the matter in detail. But considering the entire facts and circumstances of the case, I think, the petitioners are entitled orders under Section 438 Cr.P.C. 12. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 13. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the BA Nos.6560&7011 of 2020 8 exception so as to ensure that the accused has the opportunity of securing fair trial. 14. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they BA Nos.6560&7011 of 2020 9 are suspected. 6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** **ab**